Judicial Application Of Fair Liability

According to Article 24 of the Tort Liability Law,Where there is no fault in the case of damage,both parties may share the lose,which is called fair liability in academia.Its own specialty cannot be included by other theory of imputation.The theory of self-contained is enough to verify its necessity.However,the application of fair liability in practice is quite extensive.Judicial referees always adhere to the belief in fairness and justice in their hearts,and apply this provision as long as the parties are not at fault.Sticking to justice is worthy of admiration.If we blur the original intention of the birth of the law and neglect the relationship between the laws and regulations as a whole,it will make another injustice,which inevitably requires further reflection.Fair liability shall only apply to situations where the damage is not expressly provided by the law and the parties are not at fault,and this application is determined by the judicial judges in light of the actual situation,which is not mandatory.After all,the reality of life is complexed and complicated,and the disputes are various.In this case,judges are required to have good legal literacy,at the same time,the law should also do something.Article 24 of tort liability law is too abstract in its application of fair liability,which is not applicable in all cases where the law does not provide that the parties to the damage are not at fault.As Professor Wang Liming said,it needs to be typed to restrain the generalization of fair liability.Combining theory with practice,the application of fair liability can be controlled by typology.It will mainly analyze the application of fair liability in China’s judicial practice through case study,which is mainly divided into four parts.The first part analyzes the relevant cases and reveals the current status of the application of the fair liability,that is,the uncertainty of the applicable clauses,the scope is not clear,and the standards are not clear;Further analyzes its causes,that is,the theoretical positioning is not clear,the type of inquiry is not enough and the legal provision is abstract.The second part sorts out the status quo of the theoretical research on the type of fair liability firstly.It mainly explores the necessity of its type and the theoretical basis for defining fair liability as a fair share of loss rules.Secondly,combined with the sorting of cases,the article makes a typology analysis of the application of fair liability,and attempts to enumerate the application of fair liability from positive and negative examples.Specifically,it can be applied mainly to provide damage to workers,traffic accident damage,medical damage and property damage caused by accident.Fair liability should not be applied to sports damage,loss of emotional behavior,damage to educational institutions and quarrels.Within the scope of the above-mentioned type,the third part combines the views of the theoretical circles with the practices in practice,and analyzes the application of the fair liability from the constituent elements.The fourth part analyzes the consideration factors when the fair liability is specifically applied.It should mainly include the economic status of the two parties and the fairness of the sharing results.The research in this paper is intended to help the application of fair liability.